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In any serious personal injury case in Maryland, you need an expert to testify. Are there some cases where the injury is so obvious that a medical expert is not required? There may be. But anyone willing to take that chance should not be trying tort cases in Maryland.

Why Do We Need an Expert?

An expert has a number of purposes. First, with a few exceptions, you want to ask the jury to compensate you for the medical bills that you have incurred, even if they have been paid by medical insurance (because the jury is not told that insurance paid for the medical bills). Accordingly, you need a medical doctor with experience treating that particular injury to testify that the medical treatment that the plaintiff received was fair, reasonable, and medically necessary.

I was looking today at some interesting statistics on the most frequent types of car and other motor vehicle accident injuries that go to trial. It breaks down like this:

Back strains: 33%

Disc injuries: 15%

Spinal nerve injuries: 10%

Head injuries: 10%

Shoulder injuries: 4%

Knee injuries: 3%

Brain damage: 3%

Vertebra injuries: 3%

Everything else (including wrongful death): 2%

At Miller & Zois, we do not have many back strain cases so that 33% probably gets knocked by at 5%. A lot of our cases come from attorney referrals from other personal injury lawyers who are keeping these types of cases for themselves, as they well should. Our website constantly underscores “serious injury only” which keeps away a lot of those smaller cases. We do this because our business model which requires us to work up every case like it is our only case (self-serving, sure, but true) does not work well with smaller cases economically.

A new appellate opinion offers some interesting insight into the parameters under which a plaintiff may inquire about a truck driver’s driving record and the extent to which plaintiffs’ truck accident attorneys can use cross examination fodder like the commercial driver license manual and other safety manuals.

Fact of the Case

Briefly, a man on a bicycle was killed when he was hit by a truck. The bicyclist was making a right turn against a red light on a white pedestrian signal. The truck hit him and he was dragged for several hundred feet.

Scheduling depositions in car accident lawsuits usually is not a complex thing. You call the other side, you agree on dates, and you have your depositions. The key is cooperation. Rather than unilaterally serving a deposition notice, you just call opposing counsel and agree to the place, date, and time. There are rarely issues.

For some reason, and I’m not entirely sure why, scheduling depositions in medical malpractice cases always seems to be an ordeal. Common courtesies that I’m sure many Maryland malpractice lawyers accord each other in the rest of our lives sometimes go out the window. Sometimes, it seems like otherwise ethical lawyers have no qualms about making up excuses for why they or the deponents cannot attend a deposition that are not based in fact. Often, you can figure this out when you depose the witness. Continue reading →

Maryland courtrooms are slow keeping up with the times. This is not an altogether bad thing. What happens in the courtroom matters and we should probably let society work out the kinks of technology and understand all of the potential unintended consequences before our judicial system leaps into the next big thing.

That said, geez. It is 2014. Can we get wi-fi in the courtrooms? I can’t even get my phone on the Internet in some courthouses, like P.G. County Circuit Court not to name any names. We can e-file pleadings in federal court now and will be able to in state court at some point. But we are about 15 years behind the curve. Let’s not let the world get a full generation lead in technology over our courts.

One of the big issues that is increasingly getting attention is witnesses testifying at trial without actually showing up at trial. Skype is the primary method that gets talked about, probably because its low cost makes it the most desirable.

Mark Mixter and James Farmer are two Maryland tort lawyers that just don’t like each other. There are lots of attorneys that don’t like each other. Lawyers are probably more confrontational and competitive than your average bear. If you doubt this premise, go watch a lawyers’ league softball game. So add this natural tendency with the intensity of litigation and people are going to find reasons to get upset unless you are ultra thick skinned. (One resolution of mine in 2014 is to develop some thicker skin all the way around.)

When these two lawyers fight, it goes deeper and litigation apparently follows. The Maryland Court of Special Appeals recently affirmed the dismissed defamation, libel, slander and intentional inflection of emotional distress claim that one had filed against the other. You can find the opinion in Mixter v. Farmerhere if you are interested. Something about someone writing a letter to other lawyers saying disparaging things or something. I started to read – mostly out of prurient interest – but I realized I must have something better to do. (So I wrote this point instead?)

This is apparently the second case between these attorneys that has found its way to the Maryland Court of Special Appeals. The last one involved a case that settled but one of lawyers became so mad that he sought and received a sanctions order against the other. The appellate court reversed the order of sanctions. So a whole lot of trees were burned and blood pressure was raised in a battle over a little more than $3,000.

I’m not real judgmental about this kind of stuff. You rarely know what really happened in these battles and, typically, but not always, it takes two to tango. The line between fighting for a principle and merely acting out of spite can sometimes be a fine and blurry line. But it is such a waste of energy and resources for talented lawyers to spend their time sniping at each other, or worse, this. Every time I want to start World War III over something that is ultimately stupid, I go home and kiss my wife and kids and get perspective on what really matters.

There have been some interesting developments in the da Vinci Surgical Robot litigation.

da Vinci Class Action Lawsuit Update

We reported last year on the efforts of some plaintiffs’ lawyers to combine existing and future da Vinci lawsuits into a type of class action lawsuit known as an MDL. An MDL groups similar cases together in federal courts for convenience and efficiency. Those cases would be handled by one judge and would have consistent general discovery, but would then have individual trials unless there was some sort of global da Vinci settlement. Well, the petition for MDL-2381, In Re: Intuitive Surgical, Inc., Da Vinci Robotic Surgical System Products Liability Litigation was denied on August 3, 2012. The original petition included four cases spread out over four states. The JPML denied the petition we think correctly, noting that the cases were “straightforward personal injury or wrongful death actions.” Essentially, there were very few cases, and those cases would rely on largely unique and individual facts that were better suited to a standard and stand-alone lawsuit. The plaintiffs would have had a better chance (though not a great chance) if they had argued for consolidation of specific subsets of injuries—for example, hysterectomies. However, the reports thus far indicate that there are several different causes of injury, even for hysterectomy procedures. This was the right decision.

Victim Stories

Intuitive Surgical Wins the First Trial

The maker of the da Vinci robot won the first reported trial. Filed in Washington state, the plaintiffs argued that Intuitive negligently trained a doctor who used the robot to perform a prostatectomy (removal of the prostate gland). The surgery caused kidney failure, brain damage, and eventual death. However, the device’s manufacturer was able to successfully argue at the five-week trial that the doctor was solely at fault. Though unsuccessful against the manufacturer, the case settled against the doctor before trial. Continue reading →

The Maryland Court of Special Appeals reversed a $5.1 million (reduced to $1.25 million by the cap) lead paint verdict in a 91 page opinion written by Judge Shirley M. Watts.

The first 58 pages of this opinion are facts. But there are two real issues: (1) did plaintiff’s expert, a pediatrician, have the necessary qualifications to render the opinions that the lead exposure at defendant’s property caused the brain injuries alleged in this case, and (2) did the trial court properly sanction the defendant and his lawyer for alleged willful discovery violations.

I don’t care much about the latter issue because I’m just not a big fan of monetary sanctions against counsel. I’m real interested in sanctions like spoliation instructions and other sanctions that actually give a tactical advantage. But the retail value of the paper used demanding monetary sanctions is greater than the actual amount of sanctions against counsel that have been awarded and paid. The issue in this case is interesting – the opinion breaks down in painful detail – but it is ultimately as useful to me as my recollection of the Baltimore Orioles 1979 batting order. (I do, however, recommend reading the details about these sanctions for the entertainment value. I’m amazed that Judge Watts did not even comment in an off-hand way about the trial court’s findings of extreme discovery violations. I would not have the same discipline.)

So on to the real issue: the qualification of the expert. The court found that even though the pediatrician was a licensed doctor and all, he really was not qualified or even prepared to render an opinion in this case. He had limited experience in treating kids with lead paint poisoning, never evaluating or diagnosing children with lead exposure or even following the progress of kids with lead exposure. In fact, he did not even recall treating a child for lead poisoning. His qualifications, distilled down to their essence, appear to be that he is a pediatrician who keeps up with the medical literature. Continue reading →

We have the technology to essentially create bone. Just extremely cool. Drug and medical device companies come up with some unbelievable stuff that have really changed the world. Most of these companies are doing great work. Admittedly, I just focus on the negative. But it is worth nothing that most of these companies have changed the world and decreased human suffering. That is great thing.

But…. there is a but. Bone grafts, as cool as they are, have to be done right or the cure is going to be worse than the original problem. Medtronic is a company that, in my opinion, has a history of taking shortcuts that hurt patients. Most prolifically in recent years was the way they botched their defibrillator leads. The cases would have been worth billions but the Supreme Court completely bailed them out with an awful preemption ruling. Continue reading →

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Personal injury lawyers handling serious personal injury truck and auto accident, medical malpractice and products liability cases throughout Maryland and the United States